President Trump’s last stand in his never-ending war on the 2020 election is nearly here — and it’s a final gambit he’s bound to lose.
Having failed repeatedly to undo the election results in court, Trump is putting faith in the outlandish idea that Congress will invalidate Joe Biden’s victory when lawmakers convene for a joint session on Wednesday to formally count the Electoral College votes.
The count — which marks the final electoral hurdle before Biden’s Jan. 20 inauguration — is a formality that dates back to the Founding Fathers. It is typically dispensed within a few hours, as all 538 electoral votes are tallied and entered into the congressional record without much ado while the sitting vice president presides and members of the House and Senate observe.
This year, however, Trump is pushing his Republican allies to use the session to file challenges to throw out electoral votes certified for Biden in six battleground states — Wisconsin, Michigan, Georgia, Arizona, Pennsylvania and Nevada.
“Never give up. See everyone in D.C. on January 6th,” Trump tweeted ominously the day after Christmas.
Trump has also urged his die-hard supporters to stage large protests outside the U.S. Capitol. “Be there, will be wild!” he tweeted Dec. 19.
At the crux of Trump’s last-ditch bid to subvert the election is his repeatedly debunked claim that voter fraud ran rampant in the six swing states and that Congress should thereby unilaterally expunge their combined 79 electoral votes.
If Congress were to act on that request, the 306 Electoral College votes certified for Biden would be cut down to 227, meaning Trump would win reelection with the 232 votes he received.
Despite Trump’s confidence, his undemocratic proposal is destined to fail, according to William Araiza, a constitutional law professor at Brooklyn Law School.
Araiza explained that slates of electoral votes can only be tossed out if majorities of both the House and Senate vote to sustain challenges raised against any given state’s results.
There’s virtually no chance that a majority of the Democratic-controlled House will vote to undo a single slate of electoral votes — let alone the six slates required to flip the election.
“The system will hold,” Araiza said.
Worsening Trump’s odds, the GOP-controlled Senate is also unlikely to approve challenges. Majority Leader Mitch McConnell (R-Ky.) instructed his caucus last month to accept the reality of Biden’s election and move on.
Nonetheless, a handful of Trump-boosting House Republicans have pledged to contest results in multiple states on Wednesday, citing Trump’s various baseless fraud claims.
Sen. Josh Hawley (R-Mo.), a key Trump confidant, last week announced he would buck McConnell’s orders and join the House conservatives in challenging at least one state won by Biden.
In becoming the first senator to voice support for such a move, Hawley ensured that both the House and Senate will have to retreat to their respective chambers for debate before voting on whether to sustain or reject any given challenge.
Despite virtually certain failure, a dozen GOP senators led by die-hard Trump allies Ted Cruz of Texas and Ron Johnson of Wisconsin said Saturday they would join Hawley in rejecting Biden’s win and call for an audit of the election results, making sure that the Wednesday session will become an even longer, more contentious affair.
That’s despite the fact that the Nov. 3 vote was unhampered by widespread fraud or irregularities, as confirmed by election officials in all 50 states, dozens of courts across the country and even William Barr, Trump’s recently resigned attorney general.
“The challenges will be rejected, but does this mean that going forward the losing side is always going to force this sort of stupid debate? Maybe,” Araiza said. “It’s really unfortunate.”
Vice President Mike Pence is the last potential wild card in that he will oversee Wednesday’s session.
An 1887 law states that the vice president shall only serve as a presiding officer who tallies the electoral votes and oversees potential challenges.
However, some of Trump’s most extreme allies are calling on Pence to ignore the law and install Trump-backing electors irrespective of the election results.
Rep. Louie Gohmert (R-Texas) even filed a lawsuit asking a federal court to render the 1887 law unconstitutional and give Pence “sole discretion” to pick the next president. The suit was dismissed by a Trump-appointed judge on Friday, but Gohmert says he will appeal.
Legal experts say Gohmert’s Pence push is the longest of long shots.
“This lawsuit is truly garbage and that is a statement that’s really mean to garbage,” said Neal Katyal, a prominent Supreme Court litigator who served as U.S. solicitor general under President Barack Obama.
All things considered, Trump’s best bet for Wednesday is using the political theater to his advantage later.
The debates and votes ensured by Hawley may serve as litmus tests for Trump to gauge which Republicans are loyal to him as he looks beyond the White House and toward a potential 2024 presidential campaign.
“I do think he loves the idea of creating this dramatic final conflict that he can then milk if he wants to remain a force in the party,” Araiza said. “Provoking these battles gives him fodder to say, ‘Don’t forget what happened on Jan. 6.’ “
